United States v. City of Bellevue, Nebraska

• Decision Date: 02 November 1971
• Docket Number: Civ. No. 03267.
• Parties: UNITED STATES of America, Plaintiff, v. CITY OF BELLEVUE, NEBRASKA, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

334 F. Supp. 881

UNITED STATES of America, Plaintiff, v. CITY OF BELLEVUE, NEBRASKA, et al., Defendants.

Civ. No. 03267.

United States District Court, D. Nebraska.

November 2, 1971.

Richard A. Dier, U. S. Atty., for the Dist. of Nebraska, for plaintiff.

David Lathrop, Omaha, Neb., and John Rice, Bellevue, Neb., for defendants.

MEMORANDUM AND ORDER

RICHARD E. ROBINSON, Chief Judge.

THIS MATTER comes before the Court after hearing upon plaintiff's application for a permanent injunction against the defendants.

The defendant, City of Bellevue, Nebraska, has duly enacted an ordinance¹ purporting to annex approximately 1898 acres of real estate officially designated as Offutt Air Force Base, and approximately 721 acres of real estate known as "the Capehart Housing Area." All of the said real estate is located in Sarpy County, Nebraska, and the plaintiff United States of America, is the owner in fee of said real estate, which totals approximately 2619 acres. There are approximately twelve thousand military personnel and their dependents living in Government quarters, this total being equally divided between these two main areas of real estate.

The plaintiff exercises exclusive legislative jurisdiction over that portion of real estate known as Offutt Air Force Base. This is clear from the case of Offutt Housing Co. v. Sarpy County, 351 U.S. 253, 256, 76 S.Ct. 814, 817, 100 L. Ed. 1151 1956, wherein Justice Frankfurter writing the majority opinion stated that: "Offutt Air Force Base falls within the scope of Article I, § 8, cl. 17 of The United States Constitution * *."²

However, as to that portion known as the Capehart Housing area, all parties are agreed that although owned by the plaintiff, it remains subject to the legislative jurisdiction of the State of Nebraska.

After the enactment of the annexation ordinance, the plaintiff, United States, filed its complaint in the present action, seeking to enjoin the enforcement of said ordinance. This Court issued a temporary restraining order on April 17, 1969 Filing #3 enjoining the defendants herein from effectuating the ordinance, a preliminary injunction to the same effect was issued by this Court April 25, 1969 Filing #7. The Court must now decide whether said injunction should be made permanent.

In resolving this controversy, the Court must first determine whether the defendant, City of Bellevue, Nebraska, has the power and authority to annex the realty in question. And, this Court has concluded that the United States Supreme Court decision in Howard v. Commissioners of the Sinking Fund of the City of Louisville, 344 U.S. 624, 73 S.Ct. 465, 97 L.Ed. 617 1953, requires that the question be answered in the affirmative.

In Howard an area encompassing a Naval Ordinance Plant within the State of Kentucky had been acquired by a United States condemnation proceeding. The State consented to the acquisition and the United States accepted exclusive jurisdiction over the area. The Supreme Court held that the fact that the land was under the "exclusive jurisdiction" of the United States did not ban its subsequent annexation by the City of Louisville.

In so holding the Court said, as follows:

"The appellants first contend that the City could not annex this federal area because it had ceased to be a part of Kentucky when the United States assumed exclusive jurisdiction over it. With this we do not agree. When the United States, with the consent of Kentucky, acquired the property upon which the Ordinance Plant is located, the property did not cease to be a part of Kentucky. The geographical structure of Kentucky remained the same. In rearranging the structural divisions of the Commonwealth, in accordance with state law, the area became a part of the City of Louisville, just as it remained a part of the County of Jefferson and the Commonwealth of Kentucky. A state may conform its municipal structures to its own plan, so long as the state does not interfere with the exercise of jurisdiction within the federal area, by the United States. Kentucky's consent to this acquisition gave the United States power to exercise exclusive jurisdiction within the area. A change of municipal boundaries did not interfere in the least with the jurisdiction of the United States within the area or with its use or disposition of the property. The fiction of a state within a state can have no validity to prevent the state from exercising its power over the federal area within its boundaries, so long as there is no interference with the jurisdiction asserted by the Federal Government. The sovereign rights in this dual relationship are not antagonistic. Accommodation and cooperation are their aim. It is friction, not fiction, to which we must give heed.

"This question has been before other state courts, and the right to annex has been upheld. Wichita Falls v. Bowen, 143 Tex. 45, 52, 132 S.W.2d 695, 699; County of Norfolk v. Portsmouth, 186 Va. 1032, 1047, 45 S.E.2d 136, 142-143. We agree with these cases and hold that Louisville was free to annex the Ordinance Plant area." 344 U.S. at 626-627, 73 S.Ct. at 466-467.

The Court then held in Howard that the city could tax income paid to employees of the United States who worked at the Ordinance Plant, pursuant to 4 U.S.C. §§ 105-110, known as the Buck Act, by which Congress had specifically given states and state subdivisions the right to levy and collect income taxes in any federal area.

However, the Court made it clear that cities, even after an annexation of a federal area, could neither tax nor regulate such an area, except when such taxation or regulation is clearly granted to the cities by an Act of Congress. The Court said:

"Even though the Ordinance Plant is within the boundaries of the City of Louisville pursuant to the annexation, exclusive jurisdiction over the area still remains with the United States, except as modified by statute. U.S. Const. Art. I, § 8, cl. 17; Surplus Trading Co. v. Cook, 281 U.S. 647, 652, 50 S.Ct. 455, 74 L.Ed. 1091." 344 U.S. at 627, 73 S.Ct. at 467.

Thus, it is the conclusion of this Court that under federal laws, the City of Bellevue has the power and authority to annex both Offutt Air Force Base and the Capehart Housing area, and may tax and regulate in those areas to the extent permitted by the Congress of the United States.³

However, the aforesaid determination does not resolve the question regarding the propriety and legality of the annexation under the State law of annexation. The Howard case does not offer any guidance in this regard, for one can only infer from a reading of the case that the Court decided, without stating its reasons, that the annexation involved therein otherwise complied with Kentucky's law governing annexation.

It might be contended that since Nebraska not federal law controls the legality of the annexation involved herein, this Court should abstain from deciding this controversy and defer to the Nebraska courts.

However, in Zwickler v. Koota, 389 U. S. 241, 248, 88 S.Ct. 391, 19 L.Ed.2d 444 1967, the Supreme Court held that a federal court should abstain and defer to the state courts only in "special circumstances."

The Court went on to point out that if a case involves a controlling, yet undecided, question of state law, the federal court, as a matter of comity, should abstain and allow the state courts to decide the state law question, since the requisite "special circumstance" would then be present.

In the present case, however, there can be no doubt that the basic principles of Nebraska's law of annexation are well established. Thus, the "special circumstance" discussed in Zwickler is no more present here than it was in that case. Neither does this Court discern any other "special circumstance" which would call for application of the judge-made abstention doctrine to this case.

The City of Bellevue, Nebraska, is a city of the first class and its power to annex surrounding territory is governed by Neb.Rev.Stat. §§ 16-117 through 16-121 Reissue 1970.⁴

In challenging the purported annexation as being invalid under Nebraska law, the United States contends that an annexation ordinance of the defendant,⁵ which was enacted prior to the one encompassing its realty, was invalid, in that it encompassed agricultural lands, rural in character, in violation of Neb. Rev.Stat. § 16-117 Reissue 1970.⁶ It is contended that it was this annexation which put the city of Bellevue in a contiguous position with Offutt Air Force Base proper, and that since it was invalid any subsequent annexation beyond that point would also be invalid.

However, this Court need not decide the validity of that particular ordinance, because it appears from the record that the United States owned none of the land involved in the annexation pursuant thereto. The United States therefore has no standing to question the validity thereof, and this Court presumes that the ordinance and annexation were valid. One legal entity may not assert the rights or litigate the injury of another, as a general rule. E. g. Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 1943. There are, of course, exceptions, such as when it is impossible for the one who is injured to assert his own rights. E. g. N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 1953. This case is not an exception, however, and the general rule applies.

The United States next attacks the annexation ordinance embracing its realty,⁷ by referring to it as patent gerry-mandering. It uses the term in such a way as to connote a bad purpose by the defendants. Be that as it may, this Court does not intend to decide this case by the mere use of a label.

The plaintiff also alleges that the area comprising Offutt Air Force Base is of a kind and character not within the purview of the Nebraska annexation statutes for cities, and that the area is not urban or suburban in character. It also alleges that the lands comprising...